Pub­li­ca­tions

Amend­ed Land and Envi­ron­ment Court Practices

Mar 28, 2017 — Colin McFadzean, Special Counsel

INSUM­MA­RY

The Chief Judge of the Land and Envi­ron­ment Court has issued new prac­tice direc­tions for poli­cies aimed at stream­lin­ing mer­it appeals.

Mul­ti­ple adjourn­ments of con­cil­i­a­tion con­fer­ences with par­ties slow­ly mean­der­ing in an effort to reach agree­ment will no longer be per­mit­ted. If appli­cants wish to rely on amend­ed plans at a con­cil­i­a­tion, they will need to pro­vide them to Coun­cil 14 days before the con­cil­i­a­tion date, with Coun­cil then pro­vid­ing a response and draft con­di­tions 7 days before the con­cil­i­a­tion. Short adjourn­ments of no more than 3 weeks will be allowed to give effect to an in prin­ci­ple agree­ment. Fail­ing that, con­cil­i­a­tions will be ter­mi­nat­ed with the pro­ceed­ings prompt­ly list­ed for hearing.

The need for con­cil­i­at­ing par­ties to have pow­er to enter agree­ments will be strength­ened under direc­tions to be made for the car­riage of pro­ceed­ings. Also, the Court has flagged a tougher approach to timetable breach­es, includ­ing late run­ning expert reports.

The changes take effect from 27 March 2017.

The Chief Judge of the Land and Envi­ron­ment Court has revised and updat­ed prac­tice notes and poli­cies concerning:

The changes take effect from Mon­day 27 March 2017. The intent of the changes relates to stream­lin­ing Court processes.

Con­cil­i­a­tion Con­fer­ence Pol­i­cy Changes

Appli­cants who intend to pro­vide amend­ed plans or addi­tion­al infor­ma­tion for the Council’s con­sid­er­a­tion are to do so 14 days before the con­cil­i­a­tion conference.

Coun­cils are to pro­vide a response to the amend­ed plans / addi­tion­al infor­ma­tion and draft con­di­tions by 7 days before the con­cil­i­a­tion conference.

Con­cil­i­a­tions will only be adjourned if the Com­mis­sion­er is sat­is­fied that there is good rea­son to do so. Usu­al­ly, an adjourn­ment will only be grant­ed if the par­ties have realised an agree­ment in prin­ci­ple and where a short peri­od of no more than 3 weeks is required for plans and con­di­tions to be pre­pared to finalise the agree­ment. This aspect of the pol­i­cy for­malis­es an approach to con­cil­i­a­tion con­fer­ences adopt­ed by the Court since late 2016.

Devel­op­ment Appeals

Par­ties will be required to nom­i­nate the iden­ti­ty of experts when seek­ing direc­tions to list the mat­ter for a con­test­ed hear­ing. The Court’s direc­tions will list the experts to give evi­dence and whether they are to pre­pare indi­vid­ual or joint reports. No oth­er experts may give evi­dence unless the Court makes addi­tion­al direc­tions allow­ing such.

As now, the first direc­tions hear­ing will be set 28 days after the appeal is filed. Con­cil­i­a­tion con­fer­ences will be set with­in 28 days of the first direc­tions hear­ing sub­ject to the avail­abil­i­ty of the Court. We note that based upon the Court’s present work­load, con­cil­i­a­tion con­fer­ences are present­ly being set some 80 – 90 days after the first direc­tions hear­ing. New stream­lined process­es should assist reduc­ing that lag time.

Usu­al direc­tions made in rela­tion to con­cil­i­a­tion con­fer­ences will require the par­ties to have author­i­ty (or ready means of obtain­ing author­i­ty) to reach an agree­ment. Usu­al direc­tions will also be made for the pro­vi­sion of infor­ma­tion, respons­es and draft con­di­tions as detailed above in the Con­cil­i­a­tion Con­fer­ence Pol­i­cy changes.

The prac­tice note estab­lish­es a tougher approach to breach­ing timetable require­ments includ­ing but not lim­it­ed to the fil­ing of expert reports. Fail­ing a timetable vari­a­tion being made by the Online Court, a default­ing par­ty that can­not rec­ti­fy a breach with­in 2 days of the due date must relist the mat­ter before the Court and pro­vide an affi­davit explain­ing the non com­pli­ance. Costs orders for a breach may be ordered.

Mis­cel­la­neous Appeals

The Court’s ear­li­er ver­sion of the prac­tice note for mis­cel­la­neous appeals was silent as to which par­ty should pre­pare the State­ment of Facts and Con­tentions and when it should be pre­pared. The new ver­sion makes clear that the appli­cant is to pre­pare the state­ment, oth­er than for pro­ceed­ings con­cern­ing orders under the Envi­ron­men­tal Plan­ning and Assess­ment Act 1979and Part 3A projects, in which case the respon­dent is to pre­pare the state­ment. The State­ment must be filed 3 work­ing days before the direc­tions hearing.

Changes made to the Devel­op­ment Appeals prac­tice note con­cern­ing con­cil­i­a­tion con­fer­ences, expert evi­dence and timetable breach­es have been sim­i­lar­ly incor­po­rat­ed into the Mis­cel­la­neous Appeals prac­tice note.

More Infor­ma­tion?

Copies of the prac­tice notes and pol­i­cy are avail­able on the Court’s web­site. If you would like to dis­cuss any aspect of the new pro­ce­dures includ­ing how it might affect cur­rent projects or appeal pro­ceed­ings you are involved with, please con­tact Col­in McFadzean.